Fichtner v. Mohr

• Decision Date: 07 May 1929
• Docket Number: No. 20727.,20727.
• Parties: FICHTNER v. MOHR et al.
• Court: Missouri Court of Appeals

16 S.W.2d 739

FICHTNER v. MOHR et al.

No. 20727.

St. Louis Court of Appeals. Missouri.

May 7, 1929.

Rehearing Denied May 21, 1929.

Appeal from Circuit Court, Marion County; Charles T. Hays, Judge.

Action by Wilhelmina Fichtner against Charles H. Mohr and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Harry Carstarphen and E. W. Nelson, both of Hannibal, for appellant.

Hilbert & Henderson, of Monticello, Rendlen & White, of Hannibal, and Glahn & Diemer, of Palmyra, for respondents.

HAID, P. J.

This was an action commenced by the plaintiff (appellant) against the defendants to recover the loss on a deposit made by her in the Farmers' Bank of Durham, Durham, Mo., the respondents being the directors of said bank. The petition alleged that at all times during the years 1921 and 1922, and for a long time prior thereto, said bank was wholly insolvent; that each of the defendants was well aware of the insolvent condition of said bank during all the time of its insolvency, and that each of the defendants well knew during all of the years of 1921 and 1922, and for a long time prior thereto, that the said bank was wholly insolvent and unable to pay its legal obligations. The petition further alleges that on April 25, 1922, she deposited in said bank the sum of $200, and received from the bank its certificate of deposit therefor, which certificate recited that said sum was payable to the order of plaintiff in current funds three—twelve months after date, with interest at the rate of 5 per cent. per annum; that on or about August 31, 1922, the doors of said bank were closed because of insolvency, and that the affairs of the bank were taken over by the finance department of the state of Missouri for the purpose of liquidation; that plaintiff made due demand for her money; that she has received various sums at intervals, aggregating $80.20, the last payment being as of date December 27, 1927, upon which said last date the last distribution dividend was made and paid and final liquidation of said bank was effected by the finance commissioner of the state of Missouri; and that there is now due her the sum of $119.80, with interest on the entire amount deposited, as aforesaid, from April 15, 1922, to the time of the closing of said bank. Plaintiff further states that the amount plaintiff is entitled to recover hereunder is and was and first became capable of ascertainment on December 27, 1927, and she prayed for the recovery of $119.80, the balance due on the certificate of deposit with 5 per cent. interest on the entire amount of $200 from April 15, 1922, until the closing of the bank, and for 6 per cent. interest from the date of the closing of the bank.

The defendants filed an amended special demurrer setting up (1) that the cause of action accrued more than five years before the filing of the petition, and was, therefore, barred by the five-year Statute of Limitations (section 1317, Revised Statutes of Missouri 1919), and (2) that the cause of action accrued more than three years before the filing of the petition, and that it is barred by the three-year Statute of Limitations (section 1318, Revised Statutes of Missouri 1919).

The demurrer was sustained, and, the plaintiff declining to amend her petition or plead further, judgment was entered in favor of the defendants.

Plaintiff here contends that the petition shows on its face that it is not barred by the limitations of either section 1317 or section 1318 of the Revised Statutes of Missouri 1919; that the liability created by the provision of section 27, art. 12, of the Constitution and sections 11763 and 11764 of the Revised Statutes of Missouri 1919, is a contractual one, and, therefore, the applicable limitation is that fixed by section 1315, Revised Statutes of Missouri 1919.

Is the liability created as aforesaid a penal or contractual one?

In the case of Eads v. Orcutt, 79 Mo. App. 511, 519, 520 (decided in 1899) the court said: "But when the statute imposes a liability on the corporation officer which was not his, as a consequence of his doing a forbidden act, it is a penalty (in a local sense) nothwithstanding it may afford a remedy to the party complaining. It would be so held by the supreme court. Guerney v. Moore, 131 Mo. 672 ; Kritzer v. Woodson, 19 Mo. 327; Cable v. McCune, 26 Mo. 371 . * * * Our statute prohibits receiving deposits, or contracting debts, when the bank is `insolvent or in failing circumstances' and provides that any officer `violating the provisions of this section shall be individually responsible for such deposits so received and all such debts so contracted.' This clearly, though providing a remedy for the creditor and in that respect remedial, inflicts a punishment on the officer for his transgression by making him pay the debt of the corporation, which he did not owe. It will be observed that the statute is but a legislative compliance with the constitution of the state and that the language of each is in the imperative, commanding what shall not be done and prescribing onerous consequences. We are satisfied that the civil liability thus put upon the officers is a penalty." White v. Poole, 220 Mo. App. loc. cit. 988, 272 S. W. 1028.

In the case of Ivie v. Bailey (Mo. Sup.) 5 S.W.(2d) loc. cit. 53, 57 A. L. R. 881, the court has this to say with reference to the above constitutional provision: "The latter portion of the section in considering its nature and the purpose of its adoption should be construed as creating a civil liability."

We think there can be no question of the soundness of the conclusion reached in the above cases. Under the constitutional provision and statutes involved here, the liability is not directed against all stockholders alike, but is directed against certain persons, some of whom may not be stockholders, so that, in the singling out of the persons named in those provisions, it seems clear that the statute is a penal one, enforceable as a civil action. The usual statutory provisions fixing double liability upon stockholders (as in the cases relied upon by the appellant) apply to all stockholders, and could not and do not apply to nonstockholders.

The appellant argues, however, that the use of the word "debts" in our constitutional provision and statutes shows an intention to create an obligation contractual in character. A reading of the...